Irakunda v. Cates

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MILA IRAKUNDA, Case No. 20cv1870-MMA (BGS) 12 Petitioner, ORDER DENYING PETITION FOR 13 v. WRIT OF HABEAS CORPUS AND 14 B. CATES, Acting Warden, et al., DECLINING TO ISSUE A Respondents. CERTIFICATE OF APPEALABILITY [16] 17 Mila Irakunda (“Petitioner”), a state prisoner proceeding pro se, has file a petition 18 for writ of habeas corpus challenging his state court conviction and sentence pursuant to [19] 28 U.S.C. § 2254 . See Doc. No. 1. Respondent has filed an Answer and a Notice of 20 Lodgment of the state court record. See Doc. Nos. 6-7. Petitioner has not filed a 21 Traverse. For the reasons set forth below, the Court DENIES the petition and 22 DECLINES to issue a certificate of appealability.1 23 I. Background 24 Petitioner was convicted in the San Diego County Superior Court of assault with a 25 deadly weapon with the personal use of a deadly weapon and personal infliction of great [26] 27 1 Although this case was referred to United States Magistrate Judge Bernard G. Skomal pursuant to 28 28 U.S.C. § 636 (b)(1)(B), the Court has determined that neither a Report and Recommendation nor oral 1 bodily injury and sentenced to seven years in state prison. See Doc. No. 7-1 at 179, 183. 2 He claims here, as he did in state court, that his federal constitutional rights were violated 3 by the failure to give a jury instruction on mutual combat (claim one), by the imposition 4 of restitution fines and court fees without a finding of his ability to pay (claim two), and 5 by ineffective assistance of trial counsel for objecting to the use of a mutual combat jury 6 instruction (claim three). See Doc. No. 1 at 6-8. 7 Respondent answers that habeas relief is unavailable because claims one and two 8 are procedurally defaulted and do not present cognizable federal claims, and because the 9 state court adjudication of claims one and three is neither contrary to, nor an 10 unreasonable application of, clearly established federal law, nor based on an 11 unreasonable determination of the facts in light of the evidence presented in state court. 12 See Doc. No. 6-1 at 11-24. 13 II. State Court Proceedings 14 On April 2, 2018, a jury found Petitioner guilty of assault with a deadly weapon. 15 See Doc. No. 7-1 at 179. The jury returned true findings he personally used a dangerous 16 and deadly weapon, a knife, and personally inflicted great bodily injury in the 17 commission of that offense. Id. On May 10, 2018, he was sentenced to seven years in 18 prison, consisting of four years on the assault conviction plus a consecutive term of three 19 years on the personal infliction of great bodily injury finding, along with $4200 in 20 restitution fines and $224 in court fees. Id. at 183 . 21 Petitioner appealed, raising the same claims presented here. See Doc. No. 7-13. 22 The appellate court affirmed. See Doc. No. 7-19, People v. Irakunda, D074094, slip op. 23 (Cal. App. Ct. July 17, 2019). It found the instructional error claim was procedurally 24 barred by the invited error doctrine because defense counsel objected to a mutual combat 25 instruction, and that the default could not be excused by ineffective assistance of counsel 26 because counsel had a tactical reason for not wanting the instruction, that it would 27 undermine the defense theory of self-defense. Id. at 6-9 . The court found the claim 28 alleging a lack of findings of an ability to pay fines and fees was forfeited by a failure to 1 object at sentencing. Id. at 9-10 . Petitioner presented the same claims to the state 2 supreme court in a petition for review which was summarily denied on September 25, 3 2019. See Doc. Nos. 7-20, 7-21. 4 III. Evidence Presented at Trial 5 Akelewene Abella testified that he had a speaker in his apartment which he 6 decided to sell or give away because his neighbors complained it was too loud. See Doc. 7 No. 7-6 at 39. About two weeks before January 1, 2018, Petitioner, who Abella had 8 known for only a few months, offered to trade a watch for the speaker, and they did so on 9 good terms. Id. at 37-41 . Abella said he never drove Petitioner’s car, a silver Suzuki, but 10 Petitioner occasionally gave him a ride to work, as Abella did not have a car and took the 11 bus to his job as a chef. Id. at 40 ; Doc. No. 7-7 at 40. 12 On December 31, 2017, Petitioner called Abella several times at work and left 13 messages. See Doc. No. 7-6 at 41. Abella called Petitioner while returning home from 14 work and they agreed to meet at a bus stop near Abella’s apartment. Id. at 41-42 . About 15 1:00 a.m. on January 1, 2018, Abella got into the back seat of Petitioner’s car behind 16 Petitioner, who was driving, with a woman Abella did not know in the front passenger 17 seat. Id. at 42 . Petitioner told Abella he wanted to take back the watch he traded for the 18 speaker and give him a different watch but did not say why. Id. at 43 . Abella agreed to 19 give Petitioner his watch if Petitioner returned the speaker or the same kind of speaker, 20 and Petitioner “drove off looking for the same speaker as mine.” Id. at 44 . They drove 21 around for about an hour with Petitioner trying to find a speaker while the passenger 22 slept, during which Petitioner became angry Abella would not give him the watch. Id. at 23 44-45. At some point they drove past Abella’s house and he asked to get out because he 24 was tired from working twelve hours, but Petitioner refused to stop. See Doc. No. 7-7 at 25 43. The passenger woke up when Petitioner and Abella were arguing with raised voices, 26 and at some point, they picked up a man Abella did not know who sat beside him in the 27 back seat of the car. Id. at 16 ; Doc. No. 7-6 at 45. 28 Petitioner could not find a speaker and eventually stopped the car in a dark area 1 unfamiliar to Abella. See Doc. No. 7-6 at 46-47. When Petitioner told Abella to get out 2 he refused because he did not know where they were. Id. at 46 . Petitioner, who Abella 3 said is physically larger, got out of the car, opened Abella’s door, grabbed his leg, hit him 4 in the feet with something like a screwdriver, and told him “he’s going to teach me a 5 lesson.” Id. at 46-51 . Abella, who had nothing in his hands, got out of the car and began 6 looking for something in the area, which looked like a construction site, to use to defend 7 himself against Petitioner’s screwdriver, and picked up a very light, two-foot-long plastic 8 water pipe about the width of his thumb. Id. at 52-53 . He held the pipe in a defensive 9 manner about ten to fifteen feet away from Petitioner but did not swing it at Petitioner. [10] Id. at 54-55 . Petitioner went to the car, grabbed a “military” knife, and came straight 11 back at Abella. Id. at 55-56 . Abella dropped the pipe and backed away as Petitioner 12 advanced swinging the knife saying: “I’ll show you. I’m gonna teach you a lesson.” Id. 13 Abella was backing away with his arms raised out chest-high with open hands when 14 Petitioner stabbed his left forearm with the knife. Id. at 58-59 . Abella continued backing 15 away, tripped on a curb and fell on his back. Id. at 60-61 . Petitioner was saying: “I need 16 my watch,” “If you don’t give me the watch, I will finish you” and: “I won’t leave 17 without my watch.” Id. at 62-63 . Abella threw the watch in the street and Petitioner 18 picked it up. Id. at 64 . People sitting on a porch of a nearby house ran toward them and 19 called 911, prompting Petitioner to run to his car and drive away. Id. at 65-66 ; Doc. No. 20 7-7 at 16-17. 21 Abella identified Petitioner to the police by the nickname “Cash Man,” the only 22 name he knew for Petitioner. See Doc. No. 7-6 at 67. He said he had known Petitioner 23 about two and one-half months at that time, and that the two other people in the car, who 24 he did not know, never got out of the car. See Doc. No. 7-7 at 16-17. He identified the 25 knife Petitioner used from a photograph shown him in court. Id. at 24 . He was taken to a 26 hospital where he underwent surgery and it was a month before he could move his fingers 27 and use his arm, which prevented him for working, and he was still in pain and did not 28 have full use of his arm at the time of trial. Id. at 29-32 . 1 Quincy Parrish testified he was on the porch of a house at a party when he heard 2 loud voices and saw two men arguing. Id. at 79-83 . He decided to be “nosy” and walked 3 over to see what was happening. Id. at 83-84 . He was about 90 feet away when he 4 called: “Hey, you guys alright?”, which appeared to startle one of the men who “took off” 5 running to a car parked about a block away and entered on the passenger side. Id. at 846 86, 89-90. Parrish said he had been drinking and the lighting was poor, so he was not 7 able to give a good description of the person who ran away. Id. at 85 . The other man, 8 who had been stabbed, “keeled over,” and Parrish told him to calm down so he would not 9 bleed out. Id. at 87-88 . Parrish said that with the help of others from the party they 10 brought him to the porch of the house, took off his jacket, saw a “pretty bad gash” in his 11 arm and called the police. Id. at 89 . 12 Stephen Varns, a San Diego Police Officer, testified that at 3:00 a.m. on January 1, 13 2018 he responded to a radio call of a stabbing victim. Id. at 105-06 . He found Abella 14 with a four-inch cut on his left forearm wrapped in cloth which had been bleeding 15 heavily. Id. at 107-08 . Medics arrived and took Abella to the hospital where he gave 16 Officer Varns a statement to the effect that: (1) a man he knew as Cash Man had traded 17 his watch for Abella’s speaker but had asked for his watch back earlier that day and had 18 picked him up and drove him around until they arrived at an unfamiliar area where Cash 19 Man demanded the watch; (2) Abella told Cash Man he wanted his speaker but Cash Man 20 said he did not have it and pulled a military-style knife and started to swing it at Abella 21 when he refused to give up the watch; (3) Abella said he thought Cash Man was kidding 22 and began backing away and was slashed by the knife when he raised his arm to block 23 the swinging knife;, and (4) Abella took the watch off and gave it to Cash Man and ran 24 away, but Cash Man chased him until some people at a nearby house asked what was 25 going on which caused Cash Man to run away. Id. at 109-12 . 26 William Armstrong, a San Diego Police Officer, testified that on December 21, 27 2017, he and his partner were contacting transients on the south side of Colina Park when 28 they approached Petitioner standing outside the passenger side of a parked silver car 1 registered to him. Id. at 121-23 . Officer Armstrong photographed and returned to 2 Petitioner a military-style knife he found in a driver-side door panel which was not illegal 3 to possess. Id. at 122 . That photograph was the one Abella identified in court as the 4 knife Petitioner used to cut him. Id.; Doc. No. 7-6 at 24. 5 Mitchel Tani, a San Diego Police Officer, testified that on the evening of January 6 3, 2018, he and his partner were on patrol and saw Petitioner’s silver Suzuki vehicle 7 parked in an apartment complex carport. See Doc. No. 7-7 at 126-27. There were two 8 males inside who crouched down as the officers approached. Id. at 129 . Officer Tani 9 knew Petitioner because he was with Officer Armstrong on December 21, 2017, and he 10 was aware Petitioner was being sought in connection to a stabbing. Id. at 126-27 . 11 Petitioner was arrested and a fixed-blade knife was recovered from a panel in the driver12 side door. Id. at 130-31 . Petitioner had a two-inch scratch on his left cheek, a scratch on 13 his left hand and a scab on his left forearm. Id. at 132 . The People rested. Id. at 148 . 14 Petitioner testified with the aid of a Swahili interpreter that he has known Abella 15 since 2014, that they are friends, and he considers Abella to be like a brother. Id. at 16516 66. Petitioner occasionally loaned Abella his car, including for three months from 17 September to November 2017, and said Abella stole a watch from his car on December 18 30, 2017. Id. at 166-67 . The watch was sitting on the center console as Petitioner had 19 stopped wearing it since it had a cracked screen. Id. at 167-68 . On the morning of 20 December 31, 2017, just after Abella left for work on the bus, Petitioner went to look for 21 the watch and noticed it missing. Id. at 168-70 . He called Abella at work who admitted 22 taking the watch and agreed to return it later that day when he came home from work. Id. 23 at 172. 24 Petitioner and Abella met at Petitioner’s parked car when Abella came home from 25 work in the early hours of January 1, 2018. Id. at 172-73 . Petitioner told him he wanted 26 the watch back because its blue color matched his shoes, and that he was willing to sell 27 Abella one of two other watches. Id. at 174-76 . They could not agree on a price for 28 those watches and Abella asked to buy the blue watch. Id. at 177 . Abella begged 1 Petitioner to sell him the blue watch and offered to pay $20 immediately and $40 later, 2 which Petitioner refused. Id. at 177-79 . Abella said he was going to keep the watch and 3 “started talking about things from the past that had already ended,” such as loaning 4 Petitioner a Bluetooth speaker about a month earlier to take the place of a speaker in 5 Petitioner’s car which Abella had ruined when he borrowed the car for three months. Id. 6 at 179-82. Petitioner said Abella had also damaged the car and its radio and had agreed 7 to pay to have them fixed as soon as he was paid, but later told Petitioner he would not 8 pay to fix the car until Petitioner paid for the lost Bluetooth speaker. Id. at 180-82 . 9 Abella was aware his Bluetooth speaker had been stolen from Petitioner’s car, and 10 Petitioner offered to buy a new speaker if Abella would pay to fix the damage to the car 11 and return the watch. Id. at 181, 184 . They agreed and drove around looking for a 12 speaker. Id. at 186 . At Colina Park, Petitioner’s friend Shango had a Bluetooth speaker 13 which Abella refused to accept because it was smaller than his, and Shango said given 14 time he could find an exact match based on a photograph on Abella’s phone. Id. at 18715 88. That seemed to satisfy Abella, and they drove off to continue drinking and 16 celebrating the new year. Id.; Doc. No. 7-8 at 6-7. 17 They were parked with Abella, Shango and Petitioner in the backseat with 18 Petitioner in the middle and Abella behind the driver’s seat. Id at 7-8. Petitioner asked 19 Abella to return the watch, but he refused. Id. at 7 . Petitioner told him to “stop playing” 20 and held Abella’s arm and tried to take the watch. Id. Abella punched Petitioner in the 21 face, and they began fighting. Id. Neither of them had a weapon. Id. at 8 . The other 22 man in the backseat, who Petitioner referred to both as Eric and Shango, told them to stop 23 fighting and got out of the car while the female stayed in the front seat. Id. at 37, 72 . 24 Abella opened the door and grabbed a knife from the door panel with his right hand. Id. 25 at 9. Petitioner grabbed Abella’s right hand as they exited the car and attempted to 26 disarm Abella who was resisting by twisting Petitioner’s hand. Id. at 9-10 . He used two 27 hands to hold and twist Abella’s hand, which caused the knife to fall to the ground. Id. at 28 10. Petitioner kicked the knife behind him, and they continued fighting until Abella ran 1 away. Id. at 10-11 . 2 Petitioner, in order to get his watch, chased Abella a short distance to a house 3 where Abella picked up a three-foot metal pipe. Id. at 11-12 . Abella hit Petitioner with 4 the pipe numerous times on the shoulder, back, hand and face, and Petitioner ran away 5 because he was unarmed and could not defend himself. Id. at 12-13 . Abella followed, 6 hitting Petitioner in the back with the pipe as Petitioner picked the knife up off the ground 7 and told Abella to get back. Id. at 14-15 . Abella continued to hit him with the pipe, 8 including hitting his hand and knocking the knife to the ground, whereupon Petitioner 9 grabbed Abella in a bear hug and took the pipe away. Id. at 15-17 . Abella tripped over 10 backward, said he did not want to fight anymore, and threw the watch into the street. Id. 11 at 17-18. Petitioner picked up the watch, pointed out to Abella that there were people 12 approaching who were calling the police because they had been fighting, and said “let’s 13 go.” (Id. at 18.) Abella refused to leave with Petitioner and told him: “You should know 14 I’m going to get my gun, and I’m coming to look for you.” Id. Petitioner told him: “Yes. 15 Come and find me,” and left. Id. Petitioner said he was unaware Abella had been 16 injured. Id. 17 Two days later, on January 3, 2018, about 6:00 p.m., Petitioner received a phone 18 call from Abella asking to forgive him for what happened and asking where he was. Id. 19 at 19. Petitioner told him he forgave him and told him he was in his car parked where he 20 normally parked, but instead of coming to see him Abella sent the police. Id. Petitioner 21 and a friend were outside his car when the police arrived and arrested him. Id. Petitioner 22 said he was homeless and often slept in his car in dangerous high crime areas and kept 23 the knife in the car for protection, and Abella knew he kept the knife in the car. Id. at 2024 22. He said he did not have an interpreter or an attorney when questioned by police after 25 his arrest and felt like the police were “disturbing my spirit” and not listening to him. Id. 26 at 23-24. He admitted he had a 2014 theft conviction as a result of a guilty plea. Id. at 27 25. He identified the female in the car as a friend named Nunu and said he had known 28 her and Shango, who he also referred to as Eric, for two years. Id. at 27-28 . He said he 1 asked his defense attorney to locate them, but counsel was unable to do so as they were 2 both homeless. Id. at 70-71 . The defense rested. Id. at 78 . 3 The People recalled Officer Tani who testified in rebuttal that he briefly 4 interviewed Petitioner after his arrest, during which he never said anything about being 5 beaten with a pipe, never asked for an interpreter, and conversed in English. Id. at 79-83 . 6 Officer Tani said the police never received information about Petitioner’s location from 7 Abella. Id. at 83 . The jury was shown a portion of Officer Tani’s body-worn camera 8 footage showing Petitioner’s injuries. Id. at 80 . 9 The final witness, Andrew Logan, a San Diego Police Officer, testified for the 10 prosecution that after the police identified Petitioner through his Facebook moniker Cash 11 Man, Abella identified him from a photographic lineup but was unable to provide a first 12 or last name. Id. at 88-89 . Abella never provided a location where Petitioner could be 13 found or arrested. Id. at 89 . Officer Logan interviewed Petitioner in jail on January 4, 14 2018. Id. at 89-90 . Petitioner was read a Miranda advisal and answered yes when asked 15 if he understood his rights and wanted to talk. Id. at 90-91 . They spoke in English and 16 Petitioner never asked for a translator. Id. at 91 . During their 40-minute interview, 17 Petitioner never said Abella hit him with a pipe or threatened him with a gun and never 18 said he and Abella were close friends. Id. at 91-92 . He said there were two other people 19 in the car, a male and a female, but he only knew the first name of the male, Eric, and 20 only knew Facebook information of the female. Id. at 92 . Petitioner said Abella had a 21 knife which Petitioner was able to take away because he is bigger and stronger than 22 Abella, and told Officer Logan that he did not punch, hit or stab Abella and that Abella 23 must have cut himself during their struggle over the knife. Id. at 93-94 . Petitioner told 24 Officer Logan he was frustrated because he was the victim since Abella stole his watch. [25] Id. at 99 . 26 As relevant to claims one and three here, the prosecutor requested a mutual combat 27 instruction which, as set forth below, provided that if Petitioner started the fight or 28 engaged in mutual combat, he had a right to self-defense only if he actually and in good 1 faith tried to stop fighting, indicated by word or by conduct in a way that a reasonable 2 person would understand that he wanted to stop fighting and had stopped fighting, and 3 gave Abella a chance to stop fighting. The prosecutor argued the instruction was 4 supported by the evidence but was interrupted before explaining why. Id. at 150-51 . 5 Defense counsel opposed it as inconsistent with the defense theory of self-defense but 6 was also interrupted before explaining why. Id. at 151-52 . The trial judge refused the 7 instruction based on the bench note stating: “The court must instruct on a defense when a 8 defendant requests it and there is substantial evidence supporting the defense. The court 9 has a sua sponte duty to instruct on a defense if there is substantial evidence supporting it 10 and either the defense is relying on it or it is not inconsistent with the defendant’s theory 11 of the case.” Id. at 152 ; Doc. No. 7-13 at 34. Defense counsel argued to the jury that 12 Petitioner and Abella were engaged in mutual combat, and under the self-defense 13 instruction they received Petitioner was entitled to use reasonable force to protect himself 14 as long as he reasonably believed Abella posed a threat, and that he was not required to 15 retreat and could continue to pursue Abella until the threat was gone, provided he did not 16 contrive a need for self-defense and did not use more force than was necessary to protect 17 himself, and argued that Abella’s injury was accidental or incidental to Petitioner’s 18 reasonable acts of self-defense. See Doc. No. 7-8 at 215-29; Doc. No. 7-9 at 3-5. The 19 jury deliberated about five hours, which included a one and one-half hour readback of 20 Petitioner’s testimony, before finding him guilty of assault with a deadly weapon with the 21 personal use of a deadly weapon and personal infliction of great bodily injury. See Doc. 22 No. 7-1 at 176-78. 23 IV. Petitioner’s Claims 24 Petitioner seeks a writ based on the following claims: 25 (1) The trial court’s failure to sua sponte give a mutual combat jury instruction 26 violated Petitioner’s rights to a fair trial and due process as protected by the Fifth, Sixth 27 and Fourteenth Amendments. See Doc. No. 1 at 6, 11. 28 (2) The imposition of fines and fees without a determination regarding Petitioner’s 1 ability to pay violated his right to due process as protected by the Fifth and Fourteenth 2 Amendments. Id. at 7, 12 . 3 (3) Defense counsel’s objection to the use of a mutual combat instruction 4 constituted ineffective assistance of counsel in violation of Petitioner’s rights protected 5 by the Sixth and Fourteenth Amendments. Id. at 7, 12 . 6 V. Discussion 7 As set forth below, habeas relief is unavailable because claim one is procedurally 8 defaulted and Petitioner has failed to excuse the default, claim two does not present a 9 cognizable federal habeas claim, and the state court adjudication of claims one and three 10 is neither contrary to nor an unreasonable application of clearly established federal law 11 nor based on an unreasonable determination of the facts. 12 A. Legal Standards 13 Under the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), [14] Pub. L. No. 104-132, 110 Stat. 1214, in order to obtain federal habeas relief with respect 15 to a claim which was adjudicated on the merits in state court, a federal habeas petitioner 16 must demonstrate that the state court adjudication of the claim: “(1) resulted in a decision 17 that was contrary to, or involved an unreasonable application of, clearly established 18 Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a 19 decision that was based on an unreasonable determination of the facts in light of the 20 evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d). 21 A state court’s decision may be “contrary to” clearly established Supreme Court 22 precedent (1) “if the state court applies a rule that contradicts the governing law set forth 23 in [the Court’s] cases” or (2) “if the state court confronts a set of facts that are materially 24 indistinguishable from a decision of [the] Court and nevertheless arrives at a result 25 different from [the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362 , 405-06 26 (2000). A state court decision may involve an “unreasonable application” of clearly 27 established federal law, “if the state court identifies the correct governing legal rule from 28 this Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s 1 case.” Id. at 407 . In order to satisfy § 2254(d)(2), the factual findings relied upon by the 2 state court must be objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322 , 340 3 (2003). 4 B. Claim one 5 Petitioner alleges in claim one that his rights to a fair trial and due process under 6 the Fifth, Sixth and Fourteenth Amendments were violated by the failure to sua sponte 7 instruct the jury on mutual combat. See Doc. No. 1 at 6, 11. Respondent answers that: 8 (1) the claim is procedurally defaulted because the state court found it forfeited under the 9 invited error doctrine due to defense counsel’s opposition to the instruction, (2) such a 10 claim does not present a federal constitutional issue where, as here, it does not rise to the 11 level of a due process violation, and (3) in any case the state court adjudication of the 12 claim is objectively reasonable within the meaning of 28 U.S.C. § 2254 (d). See Doc. No. 13 6-1 at 12-18. 14 Petitioner presented this claim to the state appellate and supreme courts on direct 15 appeal. See Doc. Nos. 7-13, 7-20. The appellate court denied the claim in a reasoned 16 opinion and the supreme court summarily denied review. See Doc. No. 7-21. The Court 17 applies 28 U.S.C. § 2254 (d) to the last reasoned state court decision, the appellate court 18 opinion on direct appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991) (“Where 19 there has been one reasoned state judgment rejecting a federal claim, later unexplained 20 orders upholding that judgment or rejecting the same claim [are presumed to] rest upon 21 the same ground.”). The appellate court stated: 22 During the jury instruction conference, the prosecutor proposed instructing the jury with CALCRIM 3471. This instruction would have [23] informed the jury, “A person who (engages in mutual combat (or who) starts 24 a fight) has a right to self-defense only if: (¶) 1. (He/She) actually and in good faith tried to stop fighting; (¶) (AND) (¶) 2. (He/She) indicated, by word or by [25] conduct, to (his/her) opponent, in a way that a reasonable person would 26 understand, that (he/she) wanted to stop fighting and that (he/she) had stopped fighting(;) . . . (¶) (AND) (¶) 3. (He/She) gave (his/her) opponent a chance to [27] stop fighting.) (¶) If the defendant meets these requirements, (he/she) then 28 had a right to self-defense if the opponent continued to fight. (¶) (However, 1 if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the [2] fight, then the defendant had the right to defend (himself/herself) with deadly 3 force and was not required to try to stop fighting(,/ or) communicate the desire to stop to the opponent(, or give the opponent a chance to stop fighting).) (¶) [4] (A fight is mutual combat when it began or continued by mutual consent or 5 agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.)” (CALCRIM 3471.) [6] 7 Defense counsel objected to the instruction, arguing the instruction was a defense instruction, she did not request the instruction, and the instruction [8] was inconsistent with the defense theory of the case. After reviewing the 9 bench notes for the instruction, the court declined to give the instruction. [10] Notwithstanding defense counsel’s objection, Irakunda contends we 11 must reverse the judgment because the court failed to give the instruction on the court’s own motion. “We review a claim of instructional error de novo. [12] (Citation.)” (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378 .) [13] “‘“It is settled that in criminal cases, even in the absence of a request, [14] the trial court must instruct on the general principles of law relevant to the 15 issues raised by the evidence. (Citations.) The general principles of law governing the case are those principles closely and openly connected with the [16] facts before the court, and which are necessary for the jury’s understanding of 17 the case.” (Citation.)’” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) [¶] “In the case of defenses, . . . a sua sponte instructional duty [18] arises ‘only if it appears that the defendant is relying on such a defense, or if 19 there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ (Citation.) Thus, [20] when the trial court believes ‘there is substantial evidence that would support 21 a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative [22] theory.’ (Citation.)” (Breverman, supra, 19 Cal.4th at p. 157 .) [23] Here, the defense theory of the case was that Irakunda acted in [24] reasonable self-defense and the victim’s injury was the accidental or 25 incidental result of Irakunda’s reasonable self-defense. Defense counsel objected to the CALCRIM 3471 instruction because Irakunda was not relying [26] on a mutual combat defense and defense counsel considered the instruction 27 inconsistent with the defense theory of the case. “‘When a defense attorney makes a “conscious, deliberate tactical choice” to (request or) forego a [28] 1 particular instruction, the invited error doctrine bars an argument on appeal that the instruction was (given or) omitted in error.’ (Citations.)” (People v. [2] McKinnon (2011) 52 Cal.4th 610, 675 .) Consequently, Irakunda has forfeited 3 his challenge to the court’s failure to give the CALCRIM 3471 instruction. [4] Although “a defendant who is barred from raising instructional error by 5 the invited error doctrine may ‘always claim he received ineffective assistance of counsel(,)’ . . . (¶) . . . the defendant must show that there was no rational [6] tactical purpose for counsel’s act or omission, and that it is reasonably 7 probable that, absent counsel’s deficiencies, a more favorable result would have been obtained. (Citations.)” (People v. Wader (1993) 5 Cal.4th 610 , [8] 658.) Irakunda cannot make this showing because the CALCRIM 3471 9 instruction limits the availability of self-defense. (See, e.g., People v. Rogers (1958) 164 Cal.App.2d 555, 558 (concluding mutual combat instruction [10] caused the jury to reject all claims of self-defense and prejudiced the 11 defendant).) Since self-defense was the defense theory of the case and defense counsel did not want to undermine that theory, defense counsel had a rational [12] tactical purpose for objecting to the CALCRIM 3471 instruction. [13] Doc. No. 7-19, People v. Irakunda, No. D074094, slip op. at 6-9. [14] Respondent first argues claim one is procedurally defaulted based on the invited [15] error doctrine and that Petitioner is unable to excuse the default by showing cause and [16] prejudice or that new reliable evidence shows he is not guilty. See Doc. No. 6-1 at 12-15. [17] In order to preclude federal habeas review based on a procedural default, a state [18] procedural bar must rest on a state ground which is “independent” of federal law and [19] “adequate” to bar federal review. Coleman v. Thompson, 501 U.S. 722, 735 (1991). To [20] be “independent” the state law basis for the decision must not be interwoven with federal [21] law. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). In order to be “adequate,” the [22] state procedural bar must be “clear, consistently applied, and well-established at the time [23] of the petitioner’s purported default.” Calderon v. Bean, 96 F.3d 1126, 1129 (9th Cir. [24] 1996). [25] Respondent has the initial burden of pleading as an affirmative defense that a [26] failure to satisfy a state procedural rule forecloses federal review. Bennett v. Mueller, [1] 322 F.3d 573, 586 (9th Cir. 2003). If Respondent is successful, the burden shifts to 2 Petitioner to challenge the independence or adequacy of the procedural bar. Id. 3 Respondent has carried the initial burden by identifying California’s invited error 4 doctrine as precluding federal review of this claim and contending it is clearly established 5 and consistently applied. See Doc. No. 6-1 at 13 (citing Leavitt v. Arave, 371 F.3d 663 , 6 685 (9th Cir. 2004), amended and superseded on denial of rehearing by Leavitt v. Arave, [7] 383 F.3d 809, 832-33 (9th Cir. 2004) (recognizing that invited error doctrine can support 8 a procedural default if it is clearly established and consistently applied) (citing Bennett, [9] 322 F.3d at 580 ))). Because Petitioner has not filed a Traverse or responded to 10 Respondent’s contention, he has failed to satisfy his burden of challenging the 11 independence or adequacy of the state procedural bar, and claim one is procedurally 12 defaulted without Respondent being required to establish that California’s invited error 13 doctrine is in fact clearly established and consistently applied. Bennett, 322 F.3d at 586 . 14 The Court can address the merits of a procedurally defaulted claim if Petitioner can 15 demonstrate cause for his failure to satisfy the state procedural rule and prejudice arising 16 from the default, or if a fundamental miscarriage of justice would result from the Court 17 not reaching the merits of the defaulted claim. Coleman, 501 U.S. at 750 . Petitioner 18 alleges in claim three that his trial counsel was ineffective for objecting to the use of the 19 mutual combat instruction, which, if true, could establish cause to excuse the default. See 20 Murray v. Carrier, 477 U.S. 478, 488 (1986) (“[I]f the procedural default is the result of 21 ineffective assistance of counsel, the Sixth Amendment itself requires the responsibility 22 for the default be imputed to the State.”). However, as set forth in the discussion of clam 23 three below, Petitioner has not established constitutionally ineffective assistance of trial 24 counsel in objecting to the use of the instruction. He is also unable to establish prejudice 25 to excuse the default since he would not be entitled to federal habeas relief even were the 26 Court to address the merits of the claim because as discussed immediately below no 27 federal due process violation arose from the failure to give the mutual combat instruction. 28 He has therefore failed to demonstrate cause and prejudice to excuse the default. In light 1 of the fact that the evidence of Petitioner’s guilt turned primarily on a jury determination 2 of the credibility of the contrasting testimony of Petitioner and Abella, no fundamental 3 miscarriage of justice would result from the default. See Schlup v. Delo, 513 U.S. 298 , 4 316 (1995) (holding that a showing of fundamental unfairness needed to overcome a 5 procedural default requires a presentation of “evidence of innocence so strong that a court 6 cannot have confidence in the outcome of the trial.”); Jackson v. Virginia, 443 U.S. 307 , 7 324 (1979) (holding that federal habeas courts must consider the evidence “in the light 8 most favorable to the prosecution,” and must respect the province of the jury to determine 9 the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences 10 by assuming the jury resolved all conflicts in a manner supporting the verdict); Coleman 11 v. Johnson, 566 U.S. 650, 656 (2012) (“The jury in this case was convinced, and the only 12 question under Jackson is whether that finding was so insupportable as to fall below the 13 threshold of bare rationality.”); Schlup, 513 U.S. at 330 (“under Jackson, the assessment 14 of the credibility of witnesses is generally beyond the scope of review.”). 15 Accordingly, habeas relief is denied as to claim one on the basis it is procedurally 16 defaulted and because Petitioner has established neither cause nor prejudice to excuse the 17 default nor shown a fundamental miscarriage of justice would arise as a result of the 18 Court failing to reach merits of the claim due to the default. 19 Furthermore, even if the default could be overcome, the failure to instruct on a 20 defense theory does not present a claim cognizable on federal habeas unless it rises to the 21 level of a due process violation. For the following reasons, no due process violation 22 occurred, but even if it did the state court adjudication of claim one is neither contrary to, 23 nor an unreasonable application of, clearly established federal law, nor based on an 24 unreasonable determination of the facts. 25 In order to rise to the level of a federal constitutional error, an instructional error 26 must have “so infected the entire trial that the resulting conviction violates due process.” 27 Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141 , 28 147 (1973)). Petitioner is “entitled to adequate instructions on his or her theory of 1 defense.” Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984); Bradley v. Duncan, 315 2 F.3d 1091, 1098-1101 (9th Cir. 2002). Petitioner bears a “heavy burden” of showing the 3 instruction should have been given and the failure to instruct “so infected the entire trial 4 that the resulting conviction violates due process.” California v. Roy, 519 U.S. 2 , 5 5 (1996) (quoting Cupp, 414 U.S. at 147 ). 6 The jury was provided with two starkly contrasting versions of the events. As 7 detailed above, Abella testified that when he refused to get out of the car Petitioner 8 dragged him out while hitting him with something like a screwdriver and telling him he 9 was going to teach him a lesson. Abella ran, was chased by Petitioner, picked up a short, 10 light-weight piece of plastic pipe and took a defensive posture without swinging it at 11 Petitioner. Petitioner responded by retrieving a military-style knife from the car and 12 slashing or stabbing Abella while he held his empty hands out in a gesture of surrender or 13 non-aggression. Petitioner only retreated when, as an independent witness also testified, 14 he was approached by people calling the police. In contrast, Petitioner testified he and 15 Abella had peacefully settled their dispute and were celebrating the new year when 16 Petitioner attempted to take the watch off Abella’s wrist in the car, prompting Abella to 17 punch Petitioner in the face and grab the knife, which Petitioner struggled to take away. 18 When the knife fell to the ground and Petitioner kicked it behind him, Abella ran. When 19 Petitioner gave chase to get his watch, Abella picked up a long metal pipe with which he 20 struck Petitioner many times, to which Petitioner reacted by going back and picking up 21 the knife which Abella then knocked out of his hand with the pipe. Petitioner grabbed 22 Abella in a bear hug and managed to take the pipe away by being bigger and stronger, 23 after which Abella tripped over backward and surrendered the watch, ending their fight. 24 When Petitioner offered to give him a ride home, Abella threatened to come back at 25 Petitioner with a gun at some later time. Petitioner told the police he did not punch, hit or 26 stab Abella, that he thought Abella must have cut himself, and never mentioned being 27 attacked with a metal pipe or threatened with a gun. Petitioner’s trial defense was that 28 Abella must have been inadvertently or accidentally cut while Petitioner was trying to 1 take the knife away at the outset of their struggle or while he was defending himself from 2 repeated blows with the metal pipe. 3 As the state court noted, the mutual combat instruction provided that Petitioner had 4 a right to self-defense if he started the fight or engaged in mutual combat only if: (1) he in 5 good faith tried to stop the fight, (2) indicated in words or actions to Abella which a 6 reasonable person would understand that he wanted to stop fighting and in fact stopped 7 fighting, and (3) gave Abella a chance to stop fighting. It is clear that a mutual combat 8 instruction was not supported by Abella’s testimony that Petitioner attacked him in the 9 car, chased him with the knife when he ran away, that he only ever tried to defend 10 himself with a light-weight plastic pipe he never swung at Petitioner and dropped when 11 Petitioner brandished the knife with which he cut Abella while he holding his arms out 12 with his empty hands in a gesture of helplessness, and that Petitioner’s attack only 13 stopped when someone approached and called the police. 14 The instruction was also inconsistent with Petitioner’s testimony that it was only 15 after he and Abella had peacefully resolved their dispute that Abella punched him in the 16 face, grabbed the knife, grabbed a metal pipe when Petitioner chased him after forcing 17 him drop the knife, and that Abella continued hitting Petitioner until he was forced to 18 drop the pipe. Both versions lack evidence Petitioner indicated by words or deeds he 19 wanted to stop fighting and had stopped fighting. Although Petitioner testified that he 20 retreated from Abella’s blows with the pipe, he said he did so in order to pick up the 21 knife to defend himself, not to stop fighting. He did not run away at that point and did 22 not stop fighting until Abella told Petitioner he wanted to stop fighting and surrendered 23 the watch. 24 In addition to the lack of an evidentiary support for the instruction, Petitioner’s 25 theory of self-defense at trial was that Abella was accidentally or inadvertently cut while 26 Petitioner was forced to defend himself from a sudden, unexpected, and unprovoked 27 attack from which he was not obliged to retreat. As discussed below in the claim that 28 defense counsel was ineffective for opposing the instruction, that was a much stronger 1 defense than one based on a theory that Petitioner had to defend himself during a fight he 2 started or they mutually agreed to start without any evidence whatsoever that he indicated 3 in words or actions to Abella that he wanted to stop fighting and had in fact stopped 4 fighting as necessary to support the instruction, or with what would certainly be a 5 strained argument to the jury by defense counsel that was what the evidence showed. 6 Petitioner has not overcome his “heavy burden” of establishing that the failure to 7 give a mutual combat instruction rendered his trial unfair. See Roy, 519 U.S. at 5 8 (holding that to establish a federal due process violation arising from the omission of a 9 jury instruction, a petitioner must overcome an “especially heavy” burden of showing 10 that the omitted instruction should have been given and that its omission “so infected the 11 entire trial that the resulting conviction violates due process.”). The state court 12 adjudication of claim one is therefore neither contrary to, nor an unreasonable application 13 of, clearly established federal law. Neither has Petitioner shown the state court 14 adjudication involved an unreasonable determination of the facts. Miller-El, 537 U.S. at 15 340. 16 Accordingly, the Court denies habeas relief as to claim one because it is 17 procedurally defaulted, and because even if Petitioner could overcome the default, the 18 rejection of the claim by the state court is objectively reasonable within the meaning of 19 28 U.S.C § 2254(d). 20 C. Claim Three 21 Petitioner alleges in claim three he received constitutionally ineffective assistance 22 of counsel by his trial counsel’s objection to the use of the mutual combat instruction. 23 See Doc. No. 1 at 7, 12. Respondent answers that the state appellate court’s denial of this 24 claim, on the basis counsel had a reasonable tactical decision to oppose the instruction 25 and there was no prejudice because the evidence did not support the instruction, does not 26 involve an unreasonable application of clearly established federal law. See Doc. No. 6-1 27 at 19-20. 28 As quoted above, the appellate court stated: 1 Although “a defendant who is barred from raising instructional error by the invited error doctrine may ‘always claim he received ineffective assistance [2] of counsel(,)’” . . . (¶) . . . the defendant must show that there was no rational 3 tactical purpose for counsel’s act or omission, and that it is reasonably probable that, absent counsel’s deficiencies, a more favorable result would [4] have been obtained. (Citations.)” (People v. Wader (1993) 5 Cal.4th 610 , 5 658.) Irakunda cannot make this showing because the CALCRIM 3471 instruction limits the availability of self-defense. (See, e.g., People v. Rogers [6] (1958) 164 Cal.App.2d 555, 558 (concluding mutual combat instruction 7 caused the jury to reject all claims of self-defense and prejudiced the defendant).) Since self-defense was the defense theory of the case and defense [8] counsel did not want to undermine that theory, defense counsel had a rational 9 tactical purpose for objecting to the CALCRIM 3471 instruction. [10] 11 Doc. No. 7-19, People v. Irakunda, No. D074094, slip op. at 8-9. 12 For ineffective assistance of counsel to provide a basis for federal habeas relief, 13 Petitioner must show counsel’s performance was deficient, which “requires showing that 14 counsel made errors so serious that counsel was not functioning as the ‘counsel’ 15 guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 16 668, 687 (1984). He must also show counsel’s deficient performance prejudiced the 17 defense, which requires showing that “counsel’s errors were so serious as to deprive 18 [Petitioner] of a fair trial, a trial whose result is reliable.” Id. To show prejudice, 19 Petitioner need only demonstrate “a probability sufficient to undermine confidence in the 20 outcome.” Id. at 694. 21 “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, [22] 559 U.S. 356, 371 (2010). “The standards created by Strickland and section 2254(d) are 23 both highly deferential and when the two apply in tandem, review is ‘doubly’ so.” 24 Richter, 562 U.S. at 105. The standards are “difficult to meet” and “demands that state 25 court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170 , 26 181 (2011). 27 As to the first Strickland prong, Petitioner has not overcome the strong 28 presumption that his counsel’s objection to the instruction was “within the wide range of 1 reasonable professional assistance.” Strickland, 466 U.S. at 689; see also Yarborough v. 2 Gentry, 540 U.S. 1, 5 (2003) (recognizing a strong presumption counsel took actions “for 3 tactical reasons rather than through sheer neglect”) (citing Strickland, 466 U.S. at 690 4 (holding that counsel is “strongly presumed” to make decisions in the exercise of 5 professional judgment)). Defense counsel opposed the mutual combat instruction on the 6 basis that a mutual combat defense “is not a defense that is consistent with the defense 7 theory of the case . . . .” Doc. No. 7-8 at 151-52. Because as discussed above in claim 8 one a mutual combat instruction was unsupported by the trial testimony, the state court 9 correctly found that the decision by defense counsel to oppose the instruction as 10 inconsistent with the defense presented at trial under which Petitioner did not have to 11 retreat to which counsel was arguably constrained by Petitioner’s own testimony, 12 amounted to a reasonable tactical decision. The state court application of the Strickland 13 performance prong is therefore objectively reasonable. Strickland, 466 U.S. at 687 14 (holding that deficient performance “requires showing that counsel made errors so 15 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 16 Sixth Amendment.”); see also id. at 689 (“There are countless ways to provide effective 17 assistance in any given case. Even the best criminal defense attorneys would not defend 18 a particular client in the same way.”). 19 The state court also correctly found there was no Strickland prejudice because 20 there was no reasonable probability the outcome of the trial would have been different if 21 the mutual combat instruction was given, and that it may have even prejudiced the 22 defense of self-defense. See Doc. No. 7-19, People v. Irakunda, No. D074094, slip op. at 23 8-9 (citing Rogers, 164 Cal.App.2d at 558 (finding mutual combat instruction prejudiced 24 defendant by causing jury to reject claim of self-defense)). The mutual combat 25 instruction would have undermined Petitioner’s defense that Abella was cut accidentally 26 or inadvertently while Petitioner defended himself from a vicious, sudden, unexpected, 27 and unprovoked attack rather than while defending himself during a fight he started or 28 both parties agreed to initiate. Under the mutual combat instruction Petitioner would 1 have been required to prove he communicated to Abella that he wanted to stop the fight 2 and did in fact stop fighting, which is not supported by the testimony of Petitioner or 3 Abella or any other evidence in the record, including the bystander who testified 4 Petitioner ran away only at the threat of calling the police. In fact, defense counsel 5 argued in closing in support of the theory of self-defense: “This is important. The 6 defendant is not required to retreat.” Doc. No. 7-8 at 217. Even assuming Petitioner 7 could have argued that his testimony that Abella hit him in response to his attempt to take 8 the watch of Abella’s wrist could have been viewed by the jury as Petitioner having 9 started the fight or a mutually agreed initiation of hostilities within the meaning of the 10 mutual combat instruction, he has not shown the instruction would have permitted the 11 jury to accept his defense of self-defense more readily than the stronger defense 12 presented at trial that Abella initiated an unwanted, unwelcome and unavoidable fight 13 which Petitioner tried to deescalate by forcing the knife out of Abella’s hand and kicking 14 it behind him, but which he was permitted to pick up to use to continue fighting rather 15 than retreat from Abella’s blows with the metal pipe. Petitioner has not shown “a 16 probability sufficient to undermine confidence in the outcome” required to demonstrate 17 Strickland prejudice by counsel’s objection to the mutual combat instruction. See 18 Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) (“The essence of an ineffective19 assistance claim is that counsel’s unprofessional errors so upset the adversarial balance 20 between defense and prosecution that the trial was rendered unfair and the verdict 21 rendered suspect.”); Strickland, 466 U.S. at 687 (“Representation is constitutionally 22 ineffective only if it ‘so undermined the proper functioning of the adversarial process’ 23 that the defendant was denied a fair trial.”). 24 Accordingly, the Court denies habeas relief as to claim three because the state 25 court adjudication is objectively reasonable within the meaning of 28 U.S.C. § 2254 (d). 26 D. Claim Two 27 In his final claim, Petitioner argues that the imposition of fines and fees without a 28 determination regarding his ability to pay violated his right to due process as protected by 1 the Fifth and Fourteenth Amendments. See Doc. No. 1 at 7, 12. Respondent answers that 2 this claim is procedurally defaulted as a result of finding by the state court that it was 3 forfeited by the failure to raise the claim at sentencing, and that in any case it does not 4 present a cognizable federal claim. See Doc. No. 6-1 at 21-23. 5 The last reasoned state court opinion regarding of this claim is the appellate court 6 order denying habeas relief, which states: 7 As part of Irakunda’s sentence, the court imposed a restitution fine of $2,100; a corresponding parole revocation fine of $2,100, which the court [8] stayed unless parole is revoked; a court facilities assessment of $30; a court 9 operations assessment of $40; and a booking fee of $154. Relying on the recent decision in Dueñas, supra, 30 Cal.App.5th 1157 , Irakunda requests we [10] stay the fines and vacate the fee and assessments because the court violated 11 his due process rights by imposing them without first determining he had the present ability to pay to them. [12] 13 We conclude Irakunda has forfeited this issue by failing to object to the fines, fee, and assessments on this basis at the sentencing hearing. (People v. [14] Gutierrez (2019) 35 Cal.App.5th 1027, 1033 ; People v. Bipialaka (2019) 34 15 Cal.App.5th 455, 464 ; People v. Frandsen (2019) 33 Cal.App.5th 1126 , 11531155, but see People v. Castellano (2019) 33 Cal.App.5th 485, 489 (no [16] forfeiture because Dueñas announced a new, unanticipated constitutional 17 principle); People v. Johnson (2019) 35 Cal.App.5th 134, 138 (no forfeiture because the holding in Dueñas was an unforeseeable change in the law).) [18] Since the court imposed more than the minimum restitution fine, Irakunda had 19 an incentive and the ability to object to the imposition of the fine based on his inability to pay. (Pen. Code, § 1202.4, subd. (c); Gutierrez, at p. 1033; [20] Frandsen, at pp. 1153–1154.) He could have made the same objection to the 21 other fine, the fee, and the assessments. (Frandsen, at pp. 1154-1155.) By remaining silent, he forfeited his challenge to the fines, fee, and assessments. [22] (Gutierrez, at p. 1033; People v. Frandsen, at pp. 1153-1155.) [23] 24 Doc. No. 7-19, People v. Irakunda, No. D074094, slip op. at 9-10. 25 There is no need to address Respondent’s contention this claim is procedurally 26 defaulted by the failure to object at sentencing because the Court is without jurisdiction to 27 address the claim on federal habeas. See Bailey v. Hill, 599 F.3d 976, 981 (9th Cir. 2010) 28 (holding that district court lacked jurisdiction under 28 U.S.C. § 2254 to a challenge to a 1 restitution order because success on the claim would not impact the length or validity of 2 petitioner’s custody). Habeas relief is denied as to claim two for want of jurisdiction. 3 A district court may construe a habeas petition which presents claims which do not 4 lie at the core of habeas as a civil rights complaint pursuant to 42 U.S.C. § 1983 “after 5 notifying and obtaining informed consent from the prisoner.” Nettles v. Grounds, 830 6 F.3d 922, 931 (9th Cir. 2016). “If the complaint is amenable to conversion on its face, 7 meaning it names the correct defendants and seeks the correct relief, the court may 8 recharacterize the petition so long as it warns the pro se litigant of the consequences of 9 the conversion and provides an opportunity for the litigant to withdraw or amend his or 10 her complaint.” Id. at 936 . The Court declines to do so here because the petition is not 11 amenable to conversion on its face as there are no allegations against the named 12 Respondent in this action (the Warden of the Prison where Petitioner is presently 13 confined), and it is unclear who Petitioner seeks to hold personally responsible for the 14 alleged denial of his federal rights. See e.g., Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 15 1988) (“The inquiry into causation must be individualized and focus on the duties and 16 responsibilities of each individual defendant whose acts or omissions are alleged to have 17 caused a constitutional deprivation.”). In addition, construing this action as one brought 18 pursuant to 42 U.S.C. § 1983 could expose Petitioner to the provisions of the PLRA, one 19 of which provides that the entire $350 civil filing fee must be collected even if he 20 qualifies to proceed in forma pauperis and regardless of whether his action is ultimately 21 dismissed as untimely. Bruce v. Samuels, 577 U.S. 82 , 84 (2016). 22 The Court declines to construe this action as a civil rights complaint pursuant to 42 23 U.S.C. § 1983 . See Nettles, 830 F.3d at 936. The denial of habeas relief with respect to 24 claim two is without prejudice to Petitioner to pursue the claim in an action other than a 25 federal habeas petition. 26 VI. Certificate of Appealability 27 The Court is required to grant or deny a Certificate of Appealability when entering 28 a final order adjudicating a 28 U.S.C. § 2254 habeas petition. See Rule 11, rules foll. 28 1 U.S.C. § 2254 . “[T]he only question [in determining whether to grant a Certificate of 2 || Appealability] 1s whether the applicant has shown that jurists of reason could disagree 3 || with the district court’s resolution of his constitutional claims or that jurists could 4 || conclude the issues presented [including procedural issues] are adequate to deserve 5 encouragement to proceed further.” Buck v. Davis, U.S.__, 137 S.Ct. 759 , 773 6 ||(2017). Under that standard, the Court finds that a Certificate of Appealability is not 7 || appropriate as to any claim or procedural issue presented in the Petition. 8 || VII. Conclusion and Order 9 Based on the foregoing, the Court DENIES the petition for a writ of habeas corpus 10 |}and DECLINES to issue a Certificate of Appealability. The Court DIRECTS the Clerk 11 Court to enter judgment accordingly. 12 IT IS SO ORDERED. 13 || DATE: April 14, 2021 Vt lA ae phe 14 HON. MICHAEL M. ANELLO 15 United States District Judge